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By F. MARK SIEBERT



Court revises procedures for attorney discipline



"Illinois has one of the fairest and finest lawyer disciplinary systems in the United States," said William G. Clark when he was chief justice of the Illinois Supreme Court. That was before fallout from the Grey lord scandals resulted in alleged lack of confidence in Illinois' disciplinary system and general mistrust of the legal profession. To counter this the Illinois Supreme Court appointed a Blue Ribbon Committee in September 1987 to study functions and operation of the Attorney Registration and Disciplinary Commission (ARDC). The ARDC administers attorney discipline in Illinois under the Supreme Court, which has final disciplinary authority because of its constitutionally assigned task of supervising the judicial system of the state. Did the committee's report in April 1989 bear out Clark's evaluation? The committee said, "Yes, but ," adding the universally applicable statement, "There's always room for improvement."

The Supreme Court has adopted the most significant changes suggested by the committee by amending the rules that govern the ARDC. Effective October 13, the changes are supposed to increase efficiency of the disciplinary system, restore public confidence in it and assure lawyers of its fairness. They also attempt to diminish lamentably widespread ignorance among lawyers of the ARDC's


Disciplinary proceedings
against attorneys formerly
were confidential, up to the
level of the Supreme
Court's final
decisionmaking process


operation.

Attorneys' organizations support most of the new rules. When asked if the system really needed fixing, Warren Lupel, chair of the Illinois State Bar Association's (ISBA) Committee on Liaison with the ARDC, attributed the call for change to "a very vocal segment of the population that wants to remove attorney discipline from the Supreme Court and put it in the hands of 'civilian' registration agencies" such as the Department of Professional Regulation. Essentially, he feels, these opponents want to change the way lawyers do business because of a mistaken perception that "lawyers won't sue other lawyers." According to Lupel, the ISBA, like most of the legal community, approves of most of the new rules as strengthening an already workable system. It has reservations, however, about some that seem to embody the greatest change. Lupel feels that these only complicate the process with little prospect of achieving their announced goals.

One apparently simple rule change caused immediate problems and dissension when applied in practice. Disciplinary proceedings against attorneys formerly were confidential, up to the level of the Supreme Court's final decisionmaking process. Under the new rule, proceedings will be public once a formal complaint has been filed before the ARDC Hearing Board. This is supposed to open the procedure to public inspection. (The public failed to storm the first public session under the new rules, a Hearing Panel meeting on October 19. Three reporters and no members of the public were present.)

The problems centered around ARDC charges filed in September 1987 against Chicago Bar Association President Chester L. Blair. An ARDC Hearing Panel dismissed them, but ARDC Administrator John C. O'Malley exercised his prerogative of appealing the case to the Review Board. Since the case began under the old rule of confidentiality, Blair had moved on the morning of October 17 for a protective order to close to the public the November 17 hearing and the record. That same afternoon the ARDC made the record public because the Supreme Court's new rules were effective October 13. Blair's lawyers pursued the matter because of the feeling that other pending cases might well fall into the same category. The Review Board denied the request for confidentiality and also rejected Blair's motion that it consider disciplining the ARDC administrator on the grounds that it lacked jurisdiction to do so.

The ISBA objected to removal of confidentiality largely in connection with another rules change. Persons who file complaints with the ARDC will now enjoy immunity from civil liability. This is intended to encourage individuals who feel that they have grounds for a complaint but are deterred by fear of reprisal. This suggestion had drawn fire from both the ISBA and the Chicago Bar Association in their critiques of the Blue Ribbon Committee's report. For one thing, it may be unnecessary.


December 1989 | Illinois Issues | 22


Disciplinary process for lawyers

When a complaint against an attorney is filed with the Attorney Disciplinary and Registration Commission (ARDC) it is first investigated by staff members. The ARDC administrator may himself initiate an investigation on information received. The result can be a recommendation to dismiss or to continue the formal investigatory procedure. This consists of three levels:

  • Inquiry. The matter first goes to the Inquiry Board, which consists of at least 21 members appointed by the ARDC. A three-member panel drawn from the Inquiry Board determines whether there may be grounds for disciplining the attorney, but it does not determine the merits of the case. It thus acts in a manner similar to a grand jury. It may dismiss or file a complaint with the Hearing Board. Because of the new rules non-lawyer members will have to be added to the Inquiry Board to be available for panel membership.
  • Hearing. The Hearing Board, at least 21 members appointed by the ARDC, assigns the case to a three-member panel drawn from its membership. The panel conducts a formal hearing under adversarial conditions. If it finds grounds for discipline and the respondent agrees, the matter goes directly to the Supreme Court for official action.
  • Appeal. A party who does not agree with the findings of the Hearing Panel may file an exception. The matter is then considered by the full nine-member Review Board appointed by the Supreme Court. If the full board finds grounds for disciplinary action, the matter then goes to the Supreme Court. Under the new rules members of the Review Board are limited to two consecutive three-year terms.

If at any point a panel finds no grounds for discipline, the ARDC administrator can move for advancement to the next step. He can also file exceptions to panel recommendations on appropriate penalties.

It is the Supreme Court, seven justices elected from districts across the state, which actually makes a binding decision and imposes penalties.

F. Mark Siebert


Lupel said, "O'Malley has not brought forward any figures to show that anyone has been deterred from bringing charges." Opponents also fear a rash of malicious charges and feel that if the disciplinary process is public, lawyers should have some recourse. Lupel said that "lawyers are now probably the only professionals with no defense against slanderous and unfounded charges," that even if exonerated, a lawyer's reputation can be damaged and the process involves "a great cost to him in time, money and anxiety." Another central change, intended to increase public confidence in the attorney disciplinary system, adds one lay member to each three-member panel of the Inquiry Board. Lawyers' organizations generally felt that this would be beneficial. Lupel pointed out, however, that lay members would have to depend on lawyer members for interpretation of the law. He said, "If they're really sincere, they'll have to ask the lawyer members, 'Is this appropriate conduct for a lawyer or not?'"

Other rule changes intended to increase the efficiency of the disciplinary system include:

  • Reprimand by a Hearing Panel or the Review Board as a type of discipline where more severe sanctions are not warranted. This is not really new since ARDC Rules 282 and 312 already permitted it, and a number of decisions of the court had confirmed it. The court changed its own Rules 753(c)(3) and 753(e)(3) to ensure that they did not curtail the possibility of private admonition by a board or court.
  • Agreement of the parties to a specified sanction before final judgment is reached. This would be similar to plea bargaining and would require approval of the body before which the matter is pending and the Supreme Court.
  • Audit by the ARDC of its commissioner's decisions not to file complaints after preliminary investigation of charges and review of representative samples of such decisions.
  • Separate finding of misconduct for attorneys who fail to appear at hearings without adequate reason.
  • Procedures for recovery of costs from uncooperative attorneys, regardless of the outcome of the case.
  • A bar to disclosure of prior discipline of a lawyer unless admissable under the rules of evidence.
  • An orientation program for new members of the Inquiry Board, both lawyers and the lay members to be appointed under the rules changes.

The court urged the ARDC to choose the new lay members carefully and to provide for adequate oversight of them. While not mentioning the Blue Ribbon Committee's discovery of lawyer ignorance of ARDC procedures, the court encouraged publicizing of the ARDC's work and establishment of educational programs for members of the bar.

Athough not a product of the committee's report, an order entered by the Supreme Court October 20 and effective November 1 is related. It established rules to protect the public from attorneys who have been disbarred or suspended from practice as a result of disciplinary action. The two paragraphs of Supreme Court Rule 764, which covers this subject, have been expanded to nearly four pages, and one new rule has been established.

Disciplined attorneys have 21 days in which to provide notice of the discipline to clients, partners, attorneys in pending suits, courts in which they have actions pending and all jurisdictions and government agencies before which they are entitled to appear. The new rules also spell out details of retention of records and the conditions under which a disciplined attorney may receive compensation. Both the affected attorney and any partners must file affidavits with the clerk of the Supreme Court and the ARDC within 35 days assuring compliance with all rules. New Rule 769 provides for preservation of client lists and financial records.

It appears that the Supreme Court decided that the time had come for serious efforts to make the attorney disciplinary system even fairer and finer. Some changes are fundamental, and perhaps it was predictable that these would arouse the greatest controversy from lawyers. The noncontroversial changes are practical and may even seem mechanical. Together, these changes are sending a distinct message from the court to the legal profession: The system must not permit another Greylord. At stake is the public's trust.□


December 1989 | Illinois Issues | 23



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